FEDERAL COURT OF AUSTRALIA

Comcare v Dalgleish [2018] FCA 2092

ORDERS

THE COURT ORDERS THAT:

1.    Comcare’s decision dated 29 November 2016 be set aside.

2.    In substitution for the decision set aside, the Applicant shall pay to the Respondent the costs of supply and replacement of ‘neutral cushioning runners’ as requested by the Respondent’s podiatrist by letter dated 13 July 2016 as a cost of medical treatment obtained by the Respondent in relation to his left foot and ankle injury, pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

3.    The Applicant pay the Respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    This proceeding concerns a small medical expenses claim by the respondent, a former Commonwealth employee, Mr James Dalgleish, now aged 73 years. The applicant, Comcare, appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (Tribunal) which found that Comcare was liable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) to reimburse Mr Dalgleish the cost of cushioning shoes that he was medically advised to use in conjunction with custom made orthotics. Comcare submits that the case involves an important question of principle such that the appeal is justified notwithstanding the very small quantum of the dispute.

2    For the reasons I explain, I accept Comcare’s contention that the Tribunal wrongly construed the transitional provisions of the SRC Act and the appeal must therefore be upheld. The question is then whether to remit the matter to the Tribunal or whether it is better for the Court to decide the matter itself. In my view the confined nature of the issue, the uncontested medical and other evidence regarding Mr Dalgleish’s injury, the small quantum of the dispute, and the overarching purpose of civil proceedings in s 37M of the Federal Court of Australia Act 1976 (Cth), indicate that the better course is for the Court to decide the matter itself.

3    For the reasons I now explain, I consider Mr Dalgleish’s use of cushioning shoes in conjunction with custom orthotics, pursuant to a medical recommendation to do so, falls within the definition of “medical treatment” in ss 16 and 4(1) of the SRC Act and Comcare is liable to reimburse him the cost of the shoes.

THE STATUTORY FRAMEWORK

4    Comcare’s general liability to pay compensation arises under s 14 of the SRC Act, which provides:

Compensation for injuries

(1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.

(2)    Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)    Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

5    Section 124 appears in Division 2 of the SRC Act, which is headed Transitional Provisions. It relevantly provides:

Application of Act to pre-existing injuries

(1)    Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A)    Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2)    A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

…

(c)    in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.

…

6    Section 16(1) governs compensation in respect of the cost of “medical treatment” as defined in s 4(1), the terms of which I will set out later. Section 39 governs compensation in respect of aids or appliances (and their repair or replacement) for use by an injured employee.

THE FACTUAL AND PROCEDURAL BACKGROUND

7    Mr Dalgleish enlisted for National Service in September 1965 and was stationed at an Army base in Casula, New South Wales. On 12 August 1966 he commenced leave prior to embarkation to Vietnam and while on a journey to his home in Ballarat he suffered serious injuries in a motor vehicle accident. He suffered fractures of his cervical spine and of his right arm and underwent a bone graft on his right ulna and a triple fusion of the cervical spine at C3, C4, C5 and C6. He lodged a claim for compensation on 16 January 1968 and liability to pay compensation was accepted on 7 October 1968 pursuant to the Commonwealth Employees Compensation Act 1930 (Cth).

8    In December 1968, Mr Dalgleish settled a common law action he had brought against the driver of the other vehicle involved in the 1966 accident for $25,000.

9    Mr Dalgleish suffered further serious injuries in the course of his employment with the Commonwealth Department of Housing and Construction in another motor vehicle accident on 28 July 1986, when the motorcycle he was riding was struck by a car. He suffered a degloving injury to the left foot and a fracture of the calcaneus and second, third and fourth metatarsals requiring extensive orthopaedic and plastic surgery, as well as aggravating the neck injury suffered in his previous motor vehicle accident, and was an inpatient in the Alfred Hospital for seven weeks. He made a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) and on 25 August 1986 the Commissioner for Employees’ Compensation accepted liability to pay compensation for “injury and fractures to left foot” suffered in that accident.

10    On 9 February 1992 Mr Dalgleish settled a common law action he had brought against the driver of the other vehicle involved in the 1986 accident for $250,000 plus costs. On 6 February 2003 Comcare determined that the amount to be offset before workers compensation payments could recommence to Mr Dalgleish in respect of the 1986 accident was $150,000, and concluded that amount was reached on 7 February 2001. It is not clear on the materials how long Mr Dalgleish was in receipt of compensation payments for incapacity, but they ceased when he turned 65 years of age.

11    Between 2008 and 2016 inclusive Mr Dalgleish’s treating medical practitioners recommended that he be supplied and fitted with orthotic inserts in his shoes to increase his mobility and reduce his foot pain, and also recommended that he wear cushioned shoes to maximise the efficacy of the orthotics.

12    From at least February 2010 Comcare accepted liability for the costs associated with the supply and fitting of orthotics, and until a determination in September 2016 it also accepted liability for the cost of providing the medically recommended cushioned shoes. The cushioned shoes are variously described as “special shoes”, “cushioning runners” and “neutral cushioning runners” but that should not obscure the fact that in ordinary parlance they are simply “runners”, albeit expensive high quality runners with specific cushioning qualities.

The disputed determination

13    On 2 September 2016 Comcare determined that it was not liable to meet the cost of providing the recommended shoes for Mr Dalgleish. Comcare stated that to be compensable under s 16(1) of the SRC Act the recommended shoes must meet the definition of “medical treatment” in s 4(1), be obtained in relation to the compensable condition and be reasonable in the circumstances. It said:

Currently, the available medical evidence does not indicate that running shoes meets the above criteria for your accepted compensable condition of injury and fractures to left foot, fracture of one or more tarsal and metatarsal bones (left), aggravation of syndromes affecting cervical region lumbar sprain, aggravation of superficial injury of elbow, forearm, & wrist (left), adjustment reaction with [depression].

Comcare also determined that the shoes were not an aid or appliance under s 39 of the SRC Act.

14    Mr Dalgleish sought reconsideration of that determination. On 29 November 2016 a Comcare review officer affirmed the determination and stated, in relation to whether provision of the shoes constitutes “medical treatment” under s 4 of the SRC Act:

Medical aids are considered to be a medical/surgical supplies [sic], curative apparatus, or artificial limb or other similar aid or appliance that directly assist employees with their physical or bodily functioning.

Medical treatment or the curative process is aimed at:

•    curing or treating a medical condition; or

•    slowing down or preventing the deterioration of a medical condition.

Consequently, for an aid or appliance to be considered a ‘curative apparatus’ within the meaning of ‘medical treatment’, the use of that device must cure, slow down or prevent the deterioration of the compensable condition. This does not include aids or appliances that are recommended to prevent future possible injuries. It must be designed or adapted for use in medical treatment or the curative process. Medical aids would include: hearing aids, surgical footwear – prescribed orthopaedic shoes, crutches, exercise equipment, prosthetic devices, and consultations and fittings.

I am not satisfied that the available medical evidence supports that the running shoes, which are not surgical footwear or orthopaedic shoes, meet the above criteria for your accepted conditions of ‘injury and fractures to left foot, fracture of tarsal and metatarsal bones (left), syndromes affecting the cervical region, lumbar sprain, superficial injury of elbow, forearm and wrist, adjustment reaction with depressive reaction and anxiety disorder due to a medical condition.

Therefore, I am declining your claim for running shoes under section 16 of the SRC Act.

15    In relation to the claim under s 39 of the SRC Act Comcare stated:

I have also considered your claim under subsection 39(1) of the SRC Act…

Rehabilitation aids and appliances are considered to be items that assist an employee who has suffered an impairment associated with their compensable condition to perform basic home or work functions such as grooming, dressing and personal hygiene, eating and food preparation, communication, mobility and maintaining correct posture.

I am not satisfied that running shoes meet the definition of rehabilitative aid. Therefore, I am declining your claim for running shoes under section 39 of the SRC Act.

The application to the Tribunal

16    On 19 January 2017 Mr Dalgleish applied to the Tribunal seeking to review Comcare’s refusal of his claim. On 15 August 2017 the Tribunal set aside the decision under review and in substitution determined that Comcare was liable to pay for the cost of Mr Dalgleish obtaining cushioning runners as described by his podiatrist: see Dalgleish v Comcare [2017] AATA 1325.

THE TRIBUNAL DECISION

17    In its reasons the Tribunal set out the history of Mr Dalgleish’s injuries and various medical reports and letters from his treating medical practitioners (at paragraphs 1 to 11), referring to reports by Dr John Findeisen, rheumatologist, dated 19 February 2008; Mr Gregory McCluney, podiatrist, 19 September 2009; Dr DL Sweeney, GP, dated 9 September 2010 and Dr Dean Samaras, podiatrist, dated 27 January 2010, 21 April 2010, 18 September 2013, 27 October 2014 and 5 February 2015. The broad thrust of the medical evidence was that Mr Dalgleish suffers from severe osteoarthritis in his left foot and ankle and it was medically recommended that he use neutral cushioning runners in conjunction with custom made orthotics.

18    The Tribunal noted that the recommendations made by Dr Samaras were accepted by Comcare and that it paid the cost of the cushioning runners up until early 2015. The Tribunal set out the determination made by Comcare on 16 September 2016 in which it decided that non-orthopaedic shoes such as running shoes did not meet the definition of medical treatment under s 16 of the SRC Act, and did not constitute an alteration, modification, aid or appliance under s 39 of the Act, such that it was not obliged to meet the cost of the cushioning runners.

19    The Tribunal correctly identified (at paragraph 16) that the only issue before it was whether Mr Dalgleish is entitled to reimbursement of the cost of purchasing cushioning runners for use with orthotics prescribed by his podiatrist.

20    The Tribunal noted (at paragraphs 17 to 18) Comcare’s submission that deciding whether Comcare was obliged to pay for the recommended shoes required consideration of what constitutes medical treatment under s 16 of the SRC Act and/or an aid or appliance under s 39. It noted Comcare’s reliance on the decision in Heffernan v Comcare (2014) 218 FCR 1; [2014] FCAFC 2 (Heffernan) (Allsop CJ, Jacobson and Katzmann JJ). The Tribunal also noted Comcare’s submission that because Mr Dalgleish had never undertaken a rehabilitation program or been assessed as not being capable of undertaking such a program, he had no entitlement under s 39. At paragraph 19 the Tribunal made the following comments on the decision in Heffernan:

The first point I should make about the Court decision in Heffernan is that in the first paragraph I have quoted above, the Chief Justice refers to ‘…having regard to the impairment and requirements of any rehabilitation program…’. Respectfully, that misstates the statutory provision. The words of the statute are: ‘…having regard to the nature of the employee’s impairment and, where appropriate, the requirements of the rehabilitation programme…’ (my emphasis). Plainly, an employee may be entitled to an aid or appliance despite never having undergone a rehabilitation program. That much is clear from subsection (1)(b). In other words, s 39, while it appears under Division 3 which deals with rehabilitation programs, is not necessarily concerned only with that topic.

21    Then the Tribunal set out and commented upon s 37 of the 1971 Act, being the predecessor to the SRC Act. The 1971 Act was in force at the time Mr Dalgleish suffered his injuries in 1986. The Tribunal said:

After the hearing, I considered it prudent to go back to discover the genesis of s.39 in the SRC Act. I found the following provisions in the 1971 Act, as amended at 1979, and in effect at the time Mr Dalgleish suffered his injury in 1986:

37(1)    Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.

(2)    For the purposes of the last preceding sub-section, the cost of medical treatment shall, in the case of medical treatment being the supply, replacement or repair of an artificial limb or other artificial substitute or of medical, surgical or other similar aid or appliance, be deemed to include any fees and charges paid or payable by the employee to a legally qualified medical practitioner, a legally qualified dentist or other qualified person for a consultation, examination, prescription or other service reasonably rendered in connexion with the treatment.

(3)    Where an injury is caused to an employee, the Commonwealth is liable to pay compensation of such amount as is reasonable in respect of the cost, payable by the employee, of an alteration to a building occupied, or vehicle or article used, by him, or of obtaining any aid or appliance (other than an aid or appliance referred to in the last preceding sub-section) for use by him or of having such an aid or appliance repaired or replaced, being an alteration the making of which, or an aid or appliance the obtaining of which, was reasonably required as a result of the injury, but so that the total amount of the compensation payable under this sub-section in respect of the one injury does not exceed $780 or such higher amount as is prescribed except where the Commissioner is satisfied that the circumstances of the case justify the excess.

It should be immediately apparent that s. 37 in the 1971 Act forms the basis for the provisions now set out in s. 39 of the SRC Act. At that time, the Act did not contain any rehabilitation provisions and, unsurprisingly, the provisions dealing with the requirement of the employer to pay for an aid or an appliance reasonably required as a result of the injury sustained by the employee then fell under the medical expenses provision.

22    At paragraph 22 the Tribunal correctly observed that because Mr Dalgleish’s claim for compensation arises from an injury suffered when the 1971 Act was in operation it was necessary to examine the transitional provisions in s 124 of the SRC Act. After setting out s 124, the Tribunal said (at paragraphs 23 to 24):

Given the statements made by Mr Samaras regarding the need Mr Dalgleish has for cushioning runners to be used in conjunction with the orthoses prescribed by him, it appears to me to be incontrovertible that those shoes are an aid reasonably required by him as a result of his injury. The cost of the shoes was met by Comcare in the past and no explanation has been given as to why that payment ceased. Mr Dalgleish’s entitlement arises out of the 1971 Act and, under the transitional provisions in the SRC Act, the entitlement remains.

I have found that Mr Dalgleish’s entitlement to have provided for him shoes described as cushioning runners to be used in conjunction with orthoses prescribed by Mr Samaras arose under s 37 of the 1971 Act. That entitlement remains regardless of the provisions now found in s 39 of the SRC Act as a result of the transitional provisions set out in s 124 of the SRC Act.

(Emphasis added.)

23    The appeal arises from these two paragraphs of the Tribunal decision.

THE APPEAL

24    Comcare appeals to this Court pursuant to s 44 of the AAT Act. The notice of appeal raises two questions of law being:

(a)    Did the Tribunal misinterpret s 124 of the SRC Act by determining that Mr Dalgleish ‘remains’ entitled to specific heads of compensation he would have received had the 1971 Act continued to be in force?

(b)    Did the Tribunal failed to consider Comcare’s liability to pay compensation for shoes under s 39 of the SRC Act?

25    Comcare relies on two grounds:

(a)    The Tribunal failed to recognise that ss 124(1), (1A) and (2) of the SRC Act apply (as presently relevant) only in respect of liability for an “injury”, as opposed to specific heads of compensation (Ground 1); and

(b)    The Tribunal did not apply the terms of s 39 of the SRC Act, which is the provision relevant to the determination of liability for the Respondent’s claim for shoes (Ground 2).

Ground 1 – the proper construction of s 124

26    Comcare submits that the Tribunal erred in deciding that s 37 of the 1971 Act applied to Mr Dalgleish’s claim and contends that, properly construed, ss 124(1), (1A) and (2) of the SRC Act mean that:

(a)    by virtue of ss 124(1A) and (2) an injury sustained prior to the commencement of the SRC Act on 1 December 1988 will only be compensable under the SRC Act if it was compensable under the relevant previous compensation statute (in the present case the 1971 Act); and

(b)    so long as the relevant injury (suffered before 1 December 1988) was or would have been compensable under the relevant previous Act, by virtue of s 124(1) a person’s entitlement to a particular type or kind of compensation arising after 1 December 1988 in respect of that compensable injury is to be determined by reference to the applicable provision of the SRC Act (and without recourse to the comparable provision (if any) in the relevant previous compensation statute).

27    Mr Dalgleish accepts that his entitlement to compensation for the cost of medical treatment in relation to the injuries he suffered in 1986 is not to be determined by reference to s 37 of the 1971 Act, and that since the commencement of the SRC Act on 1 December 1988, its provisions apply to all compensable injuries he previously suffered. He contends, however, that the Tribunal did not fall into any relevant legal error.

28    Although Mr Dalgleish concedes this central issue, Comcare submits that the Court should provide reasons regarding the proper construction of s 124. I accept that is appropriate in circumstances where the proper construction of s 124 is likely to arise in other cases.

29    Section 14 provides that “Comcare is liable to pay compensation in accordance with this Act, for an injury suffered by an employee if the injury results in death, incapacity for work or impairment”. Such compensation potentially includes compensation for medical expenses which is governed by s 16, and aids and appliances (including their modification or alteration), which is governed by s 39.

30    Section 124 is a transitional provision dealing with the application of the SRC Act to injuries that occurred prior to the commencement of the Act on 1 December 1988. Because Mr Dalgleish’s injuries were suffered in July 1986 it was necessary for the Tribunal to apply this section. It must be construed consistently with its text and statutory context and so as to give effect to the evident purpose of the legislature: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [69] and [79]; s 2(1) Acts Interpretation Act 1901 (Cth); Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10. The Court must strive to give meaning to every word of the provision: Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558; [2004] NSWCA 200 at [74]. Where two constructions are open, a construction which avoids ‘surplusage’ is to be preferred: Project Blue Sky at [71].

31    As Comcare submits, Pt II of the SRC Act and in particular s 14 indicate that an entitlement to compensation under the SRC Act “in respect of an injury” refers to a general entitlement to compensation rather than entitlement to a specific head, type or amount of compensation.

32    The text and statutory context of subs 124(1), (1A) and (2) also indicate that they are intended to deal with a general entitlement to compensation under the SRC Act (that is, entitlement to any compensation). They operate to entitle and disentitle a person from compensation under the SRC Act if compensation was or was not payable in respect of that injury. They do not purport to entitle or disentitle a person in respect of particular types or heads of compensation by reference to corresponding types or kinds of compensation that were or were not payable under an earlier relevant compensation statute.

33    In contrast subs 124(3)-(9) deal with the entitlement to specific kinds (or heads) of compensation under the sections they mention, namely ss 17, 19, 20, 21, 22, 24, 25 and 31. For example, s 124(4) provides that the amount of compensation for permanent impairment or death occurring before the commencing day is the amount payable under the 1971 Act or earlier statute. Section 124(7)) provides that the rate of compensation in respect of the death of an employee and the rate of compensation for incapacity, where the compensation relates to a period occurring before the commencing day, are in accordance with the earlier (repealed) compensation statutes. The effect of other subsections is to gear payments under the SRC Act to the relevant earlier compensation statute: Esber v the Commonwealth (1992) 174 CLR 430 (Esber) at 437 (Mason CJ, Deane, Toohey and Gaudron JJ).

34    If Parliament had intended s 124(1A) to create an entitlement to a particular type or kind of compensation by reference back to an earlier compensation statute it could have easily inserted the word “that” or “such” so that the subsection provided “a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if that compensation was payable in respect of that injury, loss or damage”. Other parts of s 124 make use of such a device to make clear that a specific injury, impairment or death is being referred to. The absence of this device in s 124(1A) and (2) suggests the references are to a broad entitlement to compensation rather than a specific kind or type of compensation.

35    It is also noteworthy that, as initially enacted, the SRC Act did not include subs (1A). The effect of sections 124(1) and (2) was (and is) to ensure that the SRC Act applies in relation to any injury suffered whether before or after the commencement of the Act and to preclude any entitlement to compensation under the SRC Act in respect of injury loss or damage before 1 December 1988 if there was no entitlement under the relevant earlier compensation statute: Esber at 437; Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139 (Schlenert) at 142 (Lockhart J).

36    Subsection (1A) was inserted into the SRC Act by s 16 of the Industrial Relations Legislation Amendment Act 1991 (Cth) to clarify the operation of s 124. The Explanatory Memorandum for that Act states:

The purpose of the proposed subsection is to remove any doubt that an employee continues to be entitled to compensation under the Act in respect of an injury, loss or damage suffered before the date of commencement of the Act (1 December 1988) if compensation was, or would have been payable in respect of that injury under the repealed legislation.

Subclause 2(2) provides that the amendments made by this clause and clause 14 are to be taken to have come into operation on 1 December 1988. This ensures that the position of employees who were receiving compensation immediately before the commencement of the CERC Act is more effectively preserved.

Having regard to its text, context and purpose subs (1A) does not alter the effect of subs (1) and (2) so that a person’s entitlement to a particular type or kind of compensation is to be determined under a previous (repealed) compensation statute rather than under the SRC Act.

37    Relatedly, the words “loss or damage” in subs (1A) are not to be read as creating an entitlement under the SRC Act to recovery of losses suffered through medical expenses in respect of an injury, loss or damage suffered before 1 December 1988. As Comcare submits, reading the SRC Act as a whole it is clear that the words “loss or damage” in the composite phrase “injury, loss or damage” in ss 124(1), 1A and (2) refer to loss or damage to property. Broadly, there are two ways Comcare may be liable to compensate an employee: (a) where the employee suffers an injury (see for example ss 14, 16, 19, 24, 25 and 27); and (b) where the employee has an accident which does not cause injury to the employee but results in the loss of, or damage to, property used by the employee (see s 15). Other than compensation for loss of, or damage to, property under s 15, suffering a compensable injury is a necessary condition before any compensation is payable under the SRC Act.

38    A number of provisions of the SRC Act (see for example ss 46, 48, 51, 118 and 119) use a composite phrase such as “an injury to an employee or loss of, or damage to property used by an employee” and then subsequently use the phrase “injury, loss or damage” as a shorthand way of referring to the compensation payable in respect of an injury sustained by an employee or as a result of the loss of or damage to their property. This is further supported by the fact that the SRC Act does not generally use the words “loss” or “damage” to refer to types of compensation that can be awarded for the various types of economic or non-economic loss or damage an employee can suffer as a result of an injury. Rather, it uses words such as “cost” and “amount” (see for example ss 16, 18, 23(1), 29(1), 31, 39, 124(8).

39    The Court was not taken to any superior court judgement that has considered the application of s 124 to a claim seeking compensation for medical expenses or aids or appliances where the employee was injured before the commencing day. However, as noted above, obiter references in various cases confirm the construction of s 124 set out above: see Esber at 437; Schlenert at 142. In Brennan v Comcare (1994) 50 FCR 555 Gummow J said (at 562 and 564):

Part X of the 1988 Act, which includes s 124, provides comprehensive “transitional” provisions. The provisions are transitional in a particular way. They are not concerned with the preservation of the old legislation in respect of rights and liabilities accrued thereunder. Rather, they deal with the creation and substitution from their commencement of new rights in respect of past events…

…

The fundamental consideration is that the 1988 Act thus applies to an injury, loss or damage suffered by an employee before 1 December 1988 and that rights of recovery are conferred by these sub-sections. Each is expressed to be “subject to this Part”. Whilst succeeding subsections of s 124 itself and other provisions of Part X (ss 123-139) limit or exclude what otherwise would be the rights of employees to compensation, they do not confer them.

40    Mr Dalgleish accepts that any entitlement he may have to compensation under ss 16 or 39 for medical treatment or for aids or appliances can only arise under the provisions of the SRC Act. It does not arise under s 37 of the 1971 Act as the Tribunal found. However, he submits that the Tribunal did not fall into any relevant legal error. He argues that while the Tribunal relied on the wrong Act, in substance it had considered the matters it was required to consider under ss 16 or s 39 of the SRC Act. He also submits that the evidence reviewed by the Tribunal amply satisfied the factual basis for its decision that the entitlement to compensation existed. He says it is sufficient that the Tribunal found that the neutral cushioning runners were an aid reasonably required as a result of his injury, and that the Court should not set aside the Tribunal decision. Instead, he says it is appropriate for the Court to vary the Tribunal’s order so as to correctly identify the source of the entitlement to compensation as s 16 of the SRC Act, and otherwise leave the decision intact.

41    I do not accept Mr Dalgleish’s submissions in this regard. For the Tribunal to decide that the use of cushioning runners fell within the definition of medical treatment in ss 16 and 4(1) of the SRC Act it was required to go further than merely deciding that they “are an aid reasonably required as a result of his injury”.

42    Section 16 provides that, where an employee has suffered an injury out of or in the course of his or her employment, Comcare is liable to pay compensation in respect of the cost of “medical treatment”, being treatment that it was reasonable for the employee to obtain in the circumstances. The meaning of “medical treatment” is exhaustively defined in s 4(1). The Tribunal’s reasons do not show any consideration of which element or elements of the definition of “medical treatment” Mr Dalgleish satisfied or why. The Tribunal’s reasons do not permit a conclusion that the Tribunal asked itself the correct questions or made the necessary findings before deciding that Comcare was liable to compensate Mr Dalgleish for the cost of the recommended shoes.

43    I consider the Tribunal misconstrued s 124 of the SRC Act and erred in concluding that Mr Dalgleish was entitled to compensation pursuant to s 37 of the 1971 Act. Ground 1 of the appeal is made out.

Ground 2 – failure to consider s 39

44    The Tribunal’s error in determining Mr Dalgleish’s entitlement to compensation by reference to s 37 of the 1971 Act means that it also erred in its consideration of any entitlement he had to compensation under s 39 of the SRC Act. This ground is also made out.

45    Section 39 of the SRC provides an entitlement to compensation for aids or appliances (or the repair, modification or alteration of such aids or appliances), but only where the employee satisfies the requirements that he or she: (a) has suffered an injury resulting in an impairment; and (b) is undertaking or has completed a rehabilitation program or has been assessed as not capable of undertaking such a program.

46    Mr Dalgleish made no submissions in relation to this ground. He effectively concedes that he is not currently eligible for compensation under s 39 because he has neither undertaken a rehabilitation course nor been assessed as not capable of doing so.

WHETHER TO REMIT THE MATTER TO THE TRIBUNAL

47    Having misconstrued s 124 of the SRC Act, the Tribunal’s decision must be set aside.

48    The question that then arises is whether to remit the decision to the Tribunal for determination in accordance with these reasons, or whether the Court should decide the case for itself. Given Mr Dalgleish’s concession in regard to his eligibility under s 39, the question is whether it is appropriate for the Court decide whether medically recommended cushioning runners, to be used by Mr Dalgleish in conjunction with custom orthotics, constitute “medical treatment” under s 16 of the SRC Act, and whether it was reasonable for him to obtain the shoes in the circumstances.

49    Reaching such a decision would involve making findings of fact, and the Court’s power to do so is limited. Section 44(7) of the AAT Act provides as follows:

If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)    the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)    it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i)    the extent (if any) to which it is necessary for facts to be found; and

(ii)    the means by which those facts might be established; and

(iii)    the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)    the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)    the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi)    whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)    such other matters (if any) as the Court considers relevant.

50    The purpose of s 44(7)(a) is explained in the Explanatory Memorandum to the Administrative Appeals Tribunal Amendment Bill 2004 (Cth) in the following terms:

Paragraph 44(7)(a) places a significant limitation on the Court’s power to make findings of fact by providing that it can only do so if they are consistent with those made by the Tribunal. This limitation is intended to ensure that the Court does not re-open factual matters that have already been settled by the Tribunal. However, the Court can make findings of fact overriding those of the Tribunal where the Tribunal’s findings are the result of an error of law. Moreover, the Court will be able to make findings of fact where the Tribunal did not make any findings in relation to relevant facts. It is also important to note that these amendments do not in any way alter the grounds on which an appeal may be made to the Court from a Tribunal decision. Appeals will continue to lie to the Court on questions of law only.

51    To make a finding of fact pursuant to s 44(7) the Court must have material before it that provides an adequate basis for making the factual finding: Comptroller-General of Customs v Vestas-Australian Wind Technology Pty Ltd (2015) 236 FCR 499; [2015] FCAFC 185 (Vestas) at [85] (Jessup, Logan and Perram JJ).

52    In the circumstances of the present case I am satisfied that it is appropriate for the Court to make any necessary factual findings and to decide whether the cost of the cushioning runners falls within s 16.

53    First, the issue is confined. The central question is whether or not the provision of cushioned running shoes constitutes medical treatment, as defined in s 4(1), in relation to Mr Dalgleish’s accepted injury. The Tribunal did not determine this question, and it is necessary to do so for the resolution of the matter (s 44(7)(b)(i)).

54    Second, the evidence to be considered is unchallenged, it is confined to that which was before the Tribunal, and the parties have agreed the evidence is sufficient to determine the question (s 44(7)(b)(ii)).

55    Third, the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) of resolving disputes as quickly, inexpensively and efficiently as possible indicates that the Court should decide the question rather than remitted to the Tribunal. The dispute concerns the cost of a $250 pair of runners, and it has been on foot for more than two years. It has already involved one Tribunal hearing and an appeal to this Court and legal costs are many times more than the amount in dispute. I accept that Comcare brought the appeal to clarify the proper operation of s 124 but that does not detract from the fact that to remit the matter would involve further cost to the parties, further use of public resources and further delay. It will be more expeditious and efficient for the Court to decide the dispute (s 44(7)(b)(iii), (iv) and (v)).

56    Fourth, both parties consent to the Court deciding the matter.

WHETHER COMCARE IS LIABLE TO PAY THE COST OF THE CUSHIONING RUNNERS UNDER SECTION 16

57    Whether Mr Dalgleish’s claim meets the requirements of s 16 involves three issues, two of which are not in contest:

(a)    whether Mr Dalgleish suffered an injury in the 1986 accident arising out of or in the course of his employment. Comcare does not dispute this;

(b)    whether provision of the recommended shoes constitutes “medical treatment”. Comcare disputes this and its submissions centre on whether the provision of the recommended shoes fall within ss 4(1)(f) or s 4(1)(h); and

(c)    whether such treatment was reasonable for Mr Dalgleish to obtain in the circumstances. Comcare did not take issue with the Tribunal’s finding that the shoes were “an aid reasonably required” by Mr Dalgleish.

58    Section 16(1) provides:

Compensation in respect of medical expenses etc.

(1)    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

…

59    “Medical treatment” is defined in s 4(1), which provides as follows:

“medical treatment” means:

(a)    medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(b)    therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

(c)    dental treatment by, or under the supervision of, a legally qualified dentist; or

(d)    therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

(e)    an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or

(f)    the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or

(g)    treatment and maintenance as a patient at a hospital; or

(h)    nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or

(i)    any other form of treatment that is prescribed for the purposes of this definition.

The evidence

The medical evidence

60    Both parties rely on the medical evidence before the Tribunal, none of which was the subject of any contest. The salient medical evidence is as follows.

61    About two years after the 1986 accident, on 1 June 1988, Mr Dalgleish’s treating GP, Dr V Griffith, wrote a report regarding his injuries and prognosis. Amongst other things he said:

There is no question of this man has suffered a serious injury and has recovered with moderately severe scarring, limitation of movement of his left foot and ankle and moderately severe chronic pain in his neck, back, left leg, ankle and foot…

The long-term prognosis is the gradual improvement in the pain, but this may take months or years, and in years to come he is likely to suffer increasing degenerative arthritis in joints affected by his accidents…

(Emphasis added.)

62    The prediction that Mr Dalgleish would suffer degenerative arthritis in his left foot and ankle proved correct. About 10 years later, on 1 February 2008, Dr Andrew Henderson, radiologist, undertook a bone scan of Mr Dalgleish and reported, amongst other things, that there were significant osteoarthritic changes in his left ankle and foot. On 19 February 2008 Dr John Findeisen, Mr Dalgleish’s treating rheumatologist, wrote to Comcare stating that “Mr Dalgleish requires a new fitted cushioned shoe for an injured (L) leg”. On the medical reports before the Tribunal that was the first occasion that a doctor recommended that Mr Dalgleish use a fitted cushioned shoe.

63    Later that year, on 16 July 2008, another radiologist, Dr John Crowe, undertook an x-ray of Mr Dalgleish’s left foot and reported that there were significant degenerative changes at the tarsometatarsal joint and the intertarsal joints of the left foot, particularly involving the joint between the navicular and the adjacent cuneiforms, and bony spurring and joint space reduction at the bases of the third and fourth metatarsals of the left foot.

64    On 19 September 2009 Mr Gregory McCluney, podiatrist wrote to Comcare and recommended that Mr Dalgleish be fitted with Adidas Supernova shoes “for treatment of injury/injuries follow[ing] an MVA which involve multiple fractures and degloving”.

65    On 27 January 2010 Dr Dean Samaras, podiatrist, provided a report to Comcare relevantly stating:

James was referred to me by his general practitioner (Dr David Sweeney) for podiatric treatment of his painful left ankle. James has experienced chronic pain in his ankle following a motor vehicle accident in 1986 in which he fractured his left ankle. X-rays (16.07. 2008) revealed significant degenerative joint changes (post traumatic arthritis) in the left talo crural, talonavicular, navicular-cuneiform, tarso-metatarsal and intertarsal joints of the left foot, these changes were also exhibited in the 1st metatarsophalangeal joints and metatarso-sesamoid joints bilaterally.

Prefabricated pressure relief insoles were initially advised, however they have failed to provide adequate pain relief. Custom foot orthoses to be worn within cushioning runners are now indicated to attempt to further reduce joint strain and improve his gait and reduce pain. Please find the attached a quotation for these devices for your perusal. Surgical referral may also be required in future if his pain becomes intolerable.

(Emphasis added.)

Comcare subsequently accepted liability for custom orthotics.

66    On 21 April 2010 Dr Samaras provided a further report to Comcare relevantly stating:

I would recommend the use of neutral cushioning runners for daily use such as Adidas Supernova Glide, Asics Gel Nimbus or Brooks Glycerin for maximum comfort. These shoes will maximise the efficacy of the orthotics.

(Emphasis added.)

Dr Samaras provided a report in the same terms to Comcare on 5 May 2010, adding that “[w]alking shoes with extra cushioning (e.g. Rockport) would also be appropriate”. Comcare subsequently accepted liability for the cost of neutral cushioning runners.

67    On 5 September 2010 Mr Dalgleish’s treating GP, Dr D Sweeney, referred Mr Dalgleish to a pain management specialist at the Epworth Hospital. On 9 September 2010 Dr Sweeney provided a short report to Comcare which reiterated that Mr Dalgleish needed a new pair of “special shoes (Supernova)”.

68    On 4 February 2011 Dr Stephen de Graff, Director of Pain Services at Epworth Rehabilitation in Richmond, reported back to Dr Sweeney. Dr de Graff set out the history of Mr Dalgleish’s injuries from the two accidents and reported that “his pain is constant and impacts upon him day and night. He reported that Mr Dalgleish’s sleep was broken, he requires Stilnox in two doses to assist with some sleep pattern, and he takes significant quantities of painkillers including Panadeine Forte, Panadeine and Dilaudid.

69    Importantly, Dr de Graff noted that Mr Dalgleish walks every day and said that it was important that he remain as active as possible. Dr de Graff recommended further pain management medication.

70    On 1 July 2011 Dr Samaras wrote to Comcare stating:

James presented today for annual review of his footwear and custom foot orthoses for treatment of his painful left ankle as a result of an accident in 1986. His current athletic footwear which he wears most of the time have worn out. Following assessment of his foot posture and lack of mobility in the left foot I would recommend the use of neutral cushioning runners for daily use such as Adidas Supernova Glide, Asics Gel Nimbus, Brooks Glycerin or similar for maximum comfort. Walking shoes with extra cushioning (eg Rockport or Reebok walkers or similar) would also be appropriate. These shoes will maximise the efficacy of his orthotics which are still functioning well…

(Emphasis added.)

Dr Samaras provided similar reports on 18 May 2012, 18 September 2013, 27 October 2014 and 5 February 2015.

71    Dr de Graff reported to Comcare again on 26 August 2013 and said that Mr Dalgleish’s pain “is consistent and distracting. It limits his day-to-day function. Any time he undertakes any level of physical activity, it takes him 2-3 days to recover.” At this time Mr Dalgleish was taking Panadeine or Panadeine Forte, Dilaudid and Lyrica for pain management. He again noted that Mr Dalgleish exercises with walking every day.

72    On 2 July 2014 Dr de Graff reported to Comcare again and said “it is best to continue to manage James’ situation with conservative treatment. It is important for him to continue to exercise regularly... An occasional massage may assist his symptomatology but as a rule he should rely on his normal physical activities.”

73    Throughout this period Comcare accepted liability to pay for the recommended neutral cushioning runners.

74    On 13 July 2016 Dr Samaras wrote to Comcare in similar terms to his earlier reports, again recommending custom orthotics for his feet “to help reduce the pain and pressure on the joints of the left foot and ankle” and the “continued use of neutral cushioning runners for daily use such as Adidas Supernova Glide, Asics Gel Nimbus, Brooks Glycerin or Nike Pegasus or similar for maximum comfort.”

75    On 12 September 2016 Comcare determined that compensation was not payable for “non-orthopaedic shoes such as regular running shoes” under ss 16 or 19 of the SRC Act. Mr Dalgleish sought a reconsideration.

76    On 7 December 2016 Dr de Graff wrote to Comcare stating:

James also advises me that in the past, he has had support from Comcare for provision of appropriate orthopaedic shoes. Given that his left ankle and foot pain remain problematic, it is not unreasonable this to continue under the guidance of his podiatrist, Mr Dean Samaras.

77    The only medical evidence before the Tribunal was that of Mr Dalgleish’s treating practitioners, and the medical evidence that Mr Dalgleish should use neutral cushioning runners was unchallenged.

78    There was also some evidence before the Tribunal as to Mr Dalgleish’s psychological state. In Dr Griffith’s report of 1 June 1988 he said that Mr Dalgleish suffered from a “significant depressive reaction” to his pain and expressed feelings of anger and frustration. In a report requested by Comcare dated 18 November 2016 Dr Findeisen said:

As a result of the prior injuries he is gone on to develop severe osteoarthritis of the wrist and foot along with marked cervical and lumbar spondylosis. All these areas are now chronically painful. I note in your referral letter area he also has an adjustment reaction with depression. I am not as a psychiatrist so I cannot comment on this but undoubtedly the years of chronic worsening pain has worn him down.

Mr Dalgleish’s evidence

79    Mr Dalgleish wrote to Comcare requesting a reconsideration of its decision on 29 September 2016 and said that “[t]hese shoes last between 12-18 months before the formation of the shoes collapses causing my left foot/knee to collapse”.

80    Mr Dalgleish was not legally represented before the Tribunal and he was directly questioned by the Tribunal member. It does not appear from the transcript that Mr Dalgleish was sworn in but I proceed on the basis that all parties treated his answers to the Tribunal’s questions as his evidence. The transcript records the following relevant exchange:

SENIOR MEMBER: All right. Mr Dalgleish, just explain to me why and how this - you need this shoe, and how it assists you in your walking, if it does aid you, or whatever it does?

MR DALGLEISH: Well, sir, it does aid me because I can’t wear anything else. As I’ve stated in my —

SENIOR MEMBER: You can’t wear any other shoes?

MR DALGLEISH: Well, I do, and I can. Well, for short spaces of time. And even these shoes, in their own right, do not last me for a full day because my leg will collapse without…

…

When I get out of bed in the morning, I can’t walk. So, I struggle down to get – and then I finally get my shoe on, and I can move around more freely. So, without the shoe, I can’t move freely.

The swelling in my foot, when my foot swells, the shoe, itself, does expand to a certain degree. There are times when I’ve just had to just use balls and whatever else, even when the shoe is on. I need a crutch now. I need a crutch basically to walk. So, yes, it’s just the way it is. Without the shoe, it’s worse. That particular shoe. That’s why they were designed, to help people with —

81    Comcare did not seek to cross-examine Mr Dalgleish or to contradict his statements as to the importance of the shoes to his ability to walk.

Consideration

82    Mr Dalgleish argues the medically recommended neutral cushioning runners constitute “medical treatment” because they are either a “curative apparatus” under s 4(1)(h) or a “medical, surgical or other similar aid or appliance” under s 4(1)(f).

Whether the shoes are a curative apparatus under s 4(1)(h)

83    Comcare says it is “axiomatic” that curative apparatus refers to an apparatus that cures. In effect it suggests that the recommended neutral cushioning runners will not cure or treat Mr Dalgleish’s chronic foot pain and therefore do not constitute medical treatment.

84    Comcare relies on the observation of Allsop CJ (with whom Jacobson and Katzmann JJ agreed) in Heffernan (at [103]) that:

When medical treatment in relation to an injury ends and rehabilitation (including medical services) commences, may be a difficult and subtle question of fact. Indeed, there may be no clear point of distinction, and the two may overlap. This distinction in the Act, however, and the subject of s 16 being medical treatment in relation to the injury, underpins and supports the proposition put by Hill J in Thiele, that the apparatus is one used in the process of treatment, the apparatus having as an essential characteristic its use in the curative or treatment process.

It says the Full Court concluded that for something to fall within s 4(1)(h) so as to constitute medical treatment the apparatus must be “curative” or part of the “treatment process”. It contends that if an aid is something to “deal with the reasonable requirements of an employee brought about by his or her impairment” then it properly falls for consideration under the rehabilitation provisions in s 39 of the SRC Act rather than s 16: Heffernan at [105]-[107].

85    Comcare also relies on Heffernan (at [61]) to argue that the term “curative apparatus” can only sensibly be applied to that which is capable in itself of at least maintaining or ameliorating a person’s condition.

86    It says that commercially available cushioning running shoes do not fall within the definition of medical treatment as they are neither curative nor part of the treatment process. It says that the neutral cushioning runners are not an aid to assist Mr Dalgleish deal with his impairment, because the evidence suggests that the orthotics are the source of the therapeutic effect, and the fact that the orthotics must be worn with shoes does not convert such shoes into therapeutic items themselves. Comcare contends that although the recommended cushioned runners may add to Mr Dalgleish’s comfort or otherwise assist him they do not fall within the categories of items that are compensable under s 16 (or under s 39).

87    I disagree.

88    I commence by noting that it is well settled that workers’ compensation legislation is remedial and should be construed liberally: Johnston v Commonwealth (1982) 150 CLR 331 at 342 (Gibbs CJ, Mason and Wilson JJ); Comcare v Levett (1995) 60 FCR 14 at 18 (Lockhart, Beazley and Moore JJ); see also the authorities in Repatriation Commission v Hawkins (1993) 45 FCR 205 at 211. In Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 Fullagher J referred to “the established principle that, where two constructions of a Workers’ Compensation Act are possible that which is favourable to the worker should be preferred”. However, that is not to say that the conclusion that the neutral cushioning runners are a “curative apparatus” necessarily requires a liberal construction of the SRC Act.

89    In my view the neutral cushioning runners which Mr Dalgleish was medically recommended to use for the purpose of maximising the efficacy of orthotic inserts (which Comcare accepts constitute medical treatment) comfortably fall within the description “curative apparatus” in s 4(1)(h).

90    First, the authorities provide no support for Comcare’s contention that it is “axiomatic” that ‘curative apparatus’ refers to an apparatus that cures.

91    In Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 (Thomas) Hutley JA (with whom Hope JA agreed) considered the phrase “curative apparatus” as part of the definition of “medical treatment” in s 10(2)(c) of the Workers’ Compensation Act 1926 (NSW). The apparatus in question was an above ground heated swimming pool used in providing hydrotherapy for a person who suffered from spastic paraplegia. The evidence was that, as an alternative to total and constant hospital care, the applicant’s treating specialist said that she could remain at home and be maintained at her current level of health if certain modifications were made to her home, one of which was the installation of a heated swimming pool. The applicant claimed that the pool was a “curative apparatus” under s 10(2)(c). In relation to the swimming pool Hutley JA said (at 219):

The pool is a special hydrotherapy pool, constructed above ground, though attached to the premises. His Honour found that, by reason of the respondent's special complications over and above those of an ordinary paraplegic, she needed hydrotherapy on an emergency basis from day to day as required. This treatment maintains her state of health and slows, or perhaps prevents, its deterioration.

92    The respondent argued that the pool was not curative because to keep an incapacitated person in the same state was not to cure; and thus, if it were an apparatus, it could not be curative. In obiter dicta Hutley JA rejected this contention in emphatic terms (at 219-220), stating:

This is a pettifogging argument — the process of dealing with an incapacitated person may involve a continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do. Any apparatus which helps in this way is a curative apparatus.

I respectfully agree. In my view Comcare’s argument in the present case is similarly picayune.

93    In GC Wood & Son (Australia) Pty Ltd v Cullen [1991] 2 VR 214 at 225 O’Bryan J (with whom Young CJ and Vincent J agreed), dealt with the phrase “curative appliance or apparatus” in s 26 of the Workers Compensation Act 1958 (Vic). His Honour approved Hutley JA’s remarks in Thomas and said:

Rehabilitative medicine in our community is not confined to persons who can or will be restored to former health but is available to assist persons whose health would otherwise deteriorate.

By the same process of reasoning I consider that a “curative appliance or apparatus” should not be interpreted narrowly.

94    In Thiele v Commonwealth (1990) 22 FCR 342; [1990] FCA 123 (Thiele) at 350 Hill J said that where the specifications of a particular item are set by a doctor, in that case a swimming pool, it is possible to say that the essential character of the item for that person is curative.

95    In Heffernan the Full Court referred to Thomas with approval. With respect to the meaning of “curative” Allsop CJ said (at [61]):

From Thomas, it can be concluded that in a context where an apparatus is to be used as part of the process of treating the injury or incapacity, “curative” is wide enough to include maintaining or ameliorating a person’s condition, including psychological condition, even if it does not cure it.

Allsop CJ also said (at [66]), referring to Thomas and Thiele that:

…one can see the content of the phrase “curative apparatus” as some device or equipment that may be used in the process of treatment, the device having as its essential or constituent character its use in the treatment or curative process.

96    Second, the evidence shows that Mr Dalgleish suffers from severe degenerative arthritis in his left ankle and foot, which results in recurrent swelling and pain, fluctuating in intensity, which impairs his ability to undertake basic functions such as standing and walking. In his 27 January 2010 report Dr Samaras said the prefabricated pressure relief insoles he initially recommended did not provide adequate pain relief, and that “custom foot orthoses to be worn with cushioning runners are now indicated to attempt to further reduce joint strain and improve his gait and reduce pain” (emphasis added). On 21 April 2010 Dr Samaras said that the use of neutral cushioning runners would maximise the efficacy of the orthotics. He reiterated those statements in further reports over the period 2010 to 2016.

97    Dr Sweeney’s 9 September 2010 report supported Dr Samaras in recommending that Mr Dalgleish be provided a new pair of “special shoes (Supernova)”, which is one of the same shoe types Dr Samaras recommended. Dr de Graff took a similar view in his 7 December 2016 report. Dr de Graff said that Mr Dalgleish “really is starting to struggle with his day to day functioning” and that because his “left ankle and foot pain remain problematic” it was not unreasonable for him to continue to receive “appropriate orthopaedic shoes” under the guidance of Dr Samaras. While it was inapt for Dr de Graff to describe the neutral cushioning runners as “orthopaedic shoes” it is nevertheless the case that he considered that, in the circumstances of Mr Dalgleish’s injury, reasonable medical treatment included provision of shoes recommended by Dr Samaras, in conjunction with custom orthotics.

98    In Dr de Graff’s opinion it is important for Mr Dalgleish’s health that he continue to exercise by walking, and it is clear from Mr Dalgleish’s evidence that he is unable to do so without using the recommended cushioning runners in conjunction with custom orthotics.

99    The uncontested evidence indicates that the medical recommendation that Mr Dalgleish use neutral cushioning runners, in conjunction with custom orthotics, was intended to ameliorate his left ankle and foot injury by slowing further deterioration, reducing Mr Dalgleish’s level of pain and improving his ability to stand, walk and carry out the normal activities of daily living. I would also conclude that Mr Dalgleish’s psychological state is likely to deteriorate if he was stuck in his home unable to go out on a daily walk without the aid of cushioning runners in conjunction with custom orthotics.

100    Third, I do not accept Comcare’s contention that commercially available running shoes do not fall within the definition of “medical treatment” because they are not part of the “treatment process”. As I have said, the evidence indicates that Mr Dalgleish’s treating doctors considered the use of custom orthotics in conjunction with cushioning shoes to constitute reasonable medical treatment for his left ankle and foot injury which causes him severe difficulty with standing, walking and other activities of daily living, and chronic pain. Dr Samaras recommended several brands of commercially available high-quality neutral cushioning runners to “maximise the efficacy of the orthotics”. Nor does the fact that something is commercially available disqualify it from use as part of the process of medical treatment. It is inappropriate to take a narrow approach to the meaning of “treatment process”, and in the present circumstances the use of cushioning runners formed part of it.

101    Fourth, there is no basis in the evidence for Comcare’s contention that the custom orthotics are the sole source of therapeutic effect. In his reports Dr Samaras specifically recommended custom orthotics to be worn with cushioning runners to provide the therapeutic effect of reducing joint strain and pressure, improving Mr Dalgleish’s gait and reducing his pain, and said that neutral cushioning runners would maximise the efficacy of the orthotics. Mr Dalgleish’s evidence is also directly against Comcare’s contention. His uncontested evidence is that without the cushioning shoes his leg collapses and he cannot walk freely. Contrary to Comcare’s submission, I am satisfied there is ample evidence that therapeutic effect is derived from the shoes used in combination with the orthotics, rather than the benefit deriving from the orthotics alone.

102    Fifth, Comcare’s observation that wearing the shoes with the custom orthoses does not convert the shoes into therapeutic items misses the point. The question is whether, on an appropriate construction of the phrase, orthotics used in conjunction with cushioning runners constitute a “curative apparatus” and therefore fall within the definition of “medical treatment”. Depending on the circumstances cushioning runners may not be therapeutic in themselves, but in the circumstances of the present case, where the shoes are acquired pursuant to a medical recommendation that they be used in conjunction with custom orthotics, as part of a treatment process directed at ameliorating his left ankle and foot injury as discussed above, the essential character of the shoes is their use in the “curative process”: see Thiele at 350.

103    Comcare did not contend that cushioning runners to be used in conjunction with custom orthotics were not an “apparatus”, and I need not give much attention to this issue. The word “apparatus” is not a term of art. In Thomas Handley JA observed (at 220), and I respectfully agree, that the judicial consideration the expression has received has largely been in construing statutes with different objects and in different contexts to the case in hand, such that they cannot provide firm guidance. His Honour concluded that an aboveground heated swimming pool was an “apparatus” and that the heating oil to heat the water was part of it, but doubted that a pool constructed of concrete or masonry or sunk in the ground so as to become an under to part of the realty would be. In Thiele Hill J followed Thomas and considered that an in-ground swimming pool was not an apparatus (at 350).

104    The Shorter Oxford English Dictionary defines “apparatus” to include “the things collectively necessary for the performance of some activity or function”. It is appropriate to take a liberal construction and in my view the combination of cushioning runners together with custom made orthotics, directed at improving a person’s ability to stand and walk, falls within the expression.

Whether the shoes are a medical, surgical or other similar aid or appliance under s 4(1)(f)

105    Given my finding that the neutral cushioning shoes fall within s 4(1)(h) and therefore constitute “medical treatment” within s 16 of the SRC Act, it is strictly unnecessary to decide whether s 4(1)(f) applies. However, in circumstances where the question was fully argued it is best that I express a view.

106    Comcare emphasises that in order to fall within s 4(1)(f) the aid or appliance needs to have “a character or nature that is similar to a medical or surgical aid or appliance”, relying in this regard on the remarks of Allsop CJ in Heffernan at [45]-[46]:

Mr Heffernan submitted that the primary judge erred in criticising the Tribunal for its approach. It was submitted that the primary judge erred in his approach by focusing on the nature and essence of the aid or appliance and by failing to apply a test based on “use and result”. Thus, it was submitted, he should have posed the question whether, regardless of its character, the aid or appliance, if supplied, would have an effect similar to that of a medical or surgical aid. Thus a modified vehicle gives mobility, just as do a walking stick or crutches. A test directed to the inherent nature, character or attributes unnecessarily restricted remedial legislation. It was also submitted that the terms of s 39(1), in particular, subs (1)(d) and (1)(e), did not tend against this construction of the definition of medical treatment.

I reject these submissions. The proper approach is to examine the provision in question first by reference to its text and statutory context. No secondary or extrinsic materials were said to be relevant here. The term being defined is “medical treatment”. Each of the paragraphs in the collocation of subjects in paras (a) to (i) refers to medical, surgical, therapeutic or dental treatment and related concepts. Paragraph (f) refers to an artificial limb or a medical or surgical or other similar aid or appliance. It is not narrowing the definition in para (f) to look to an aid or appliance that has a character or nature that is similar to a medical or surgical aid or appliance. Use is not irrelevant to that. The provision does not, however, refer to something that merely produces a result that might be brought about by some medical aid. It refers to an aid or appliance that is similar to a medical or surgical aid or appliance. The subject being defined is a phrase with an ordinary meaning: “medical treatment”. Though the meaning (s 4(1) uses the word “means”) is to be taken from paras (a) to (i), those paragraphs are to be approached bearing in mind and coloured by the normal meaning of the phrase. As a matter of language, set in the context of “medical treatment” as defined in paras (a) to (i), a modified motor vehicle cannot ordinarily be sensibly described as a similar aid or appliance to a medical or surgical aid or appliance. I agree with the conclusion of the primary judge.

(Emphasis added, citations omitted.)

107    Comcare notes, and I accept, that the recommended cushioning runners are made by well-known running shoe manufacturers and can be purchased at chain stores that sell athletic shoes. There is no evidence that they are designed for any specific medicinal or surgical purpose. It submits that they are similar in nature to other athletic equipment such as tennis shoes, cross-trainers, tracksuits, athletic rights and leggings, sports bras and other exercise and activewear, and do not have a character or nature that is similar to a medical or surgical aid or appliance.

108    It further argues that the fact that the cushioning runners are to be used in conjunction with prescribed orthopaedic orthotics (for which it accepts liability to pay compensation under s 16) does not bring the footwear within the definition of “medical treatment”. On this issue it contends that everyday items such as couches, beds, baths, showers, cars and items of clothing could be used in conjunction with medical aids or appliances, and if the legislature had intended these items to be compensable as medical treatment it could have easily said so.

109    Comcare argues Mr Dalgleish’s contention that the recommended shoes fall within s 4(1)(f) because they assist with the reduction of pain and strain is misconceived. It says, relying on Heffernan, that s 4(1)(f) is not satisfied by something that merely produces a result that might have been brought about by a medical aid; the crucial question is whether it is of a character or nature that is similar to a medical or surgical aid or appliance.

110    The question is not straightforward but, albeit with some hesitation, I consider the medical recommendation to Mr Dalgleish to use the cushioning runners in conjunction with prescribed orthotics so as to maximise their efficacy, means that they are similar to a medical aid or appliance and fall within s 4(1)(f).

111    First, I consider Comcare wrongly focuses attention on the cushioning runners alone. While that suits its argument, it is inconsistent with the medical evidence. The cushioning runners are medically recommended to be used in conjunction with prescribed custom-made orthotics, to maximise the efficacy of the orthotics. When the cushioning runners and orthotics are considered together their character or nature is similar to a medical aid or appliance: see Heffernan at [46].

112    Second, Comcare’s argument boils down to the contention that the sole or decisive consideration as to the application of s 4(1)(f) is whether the relevant aid or appliance is inherently medical or surgical. I do not consider Heffernan or any of the other authorities on s 4(1)(f) require that the test be solely confined to the intrinsic nature of the object for which compensation is sought. Although Allsop CJ said that s 4(1)(f) does not refer to something that “merely produces a result that might be brought about by some medical aid” his Honour also said that use is relevant to the question. In my view Comcare’s approach is contrary to the requirement to liberally construe the provision.

113    The phrase “medical or other similar aid” takes its colour from being part of a definition of “medical treatment”. It is not difficult to think of many aids or appliances that are not intrinsically medical in nature and are not designed to treat an injury, which nonetheless may be applied for the purpose of medical treatment. For example, a doctor may recommend the purchase of a ball to be squeezed in order to strengthen and rebuild damaged tendons in the hand or wrist, or recommend gym equipment in order to strengthen an injured area. Neither the ball nor the gym equipment are intrinsically medical in nature but what may give such items a medical nature is the extent to which, in the circumstances of a particular case, they are part of the treatment process.

114    It should also be kept in mind that Heffernan involved a claim that the cost of purchasing and modifying a Toyota Landcruiser four-wheel drive, in accordance with recommendations made by the applicant’s treating occupational therapist, or similar to a medical aid or appliance. The purchase and modification of such a vehicle was not directed to treating the applicant’s back injury, but to allowing him to continue to drive. The facts in Heffernan are quite different to those in the present case where the evidence is that the shoes contribute to a therapeutic effect.

115    Each case must be considered on its own facts and context, and as Allsop CJ said, use is relevant. In the present case Dr Samaras’ recommendation that Mr Dalgleish use neutral cushioning runners in conjunction with custom orthotics was, as I have said, part of the treatment process aimed at ameliorating his injury. The medical evidence indicates that Mr Dalgleish’s use of cushioning runners is integral to achieving the treatment outcome sought to be achieved.

Whether it is reasonable to obtain the recommended shoes?

116    As I have said, Comcare did not take issue with the Tribunal’s finding that the shoes were “an aid reasonably required” and its submissions were essentially directed to whether the recommended cushioning runners fell within the definition of medical treatment.

117    It is uncontested that Mr Dalgleish suffers from severe degenerative arthritis and chronic pain in his left foot and ankle, and has severe difficulties in everyday functions such as rising to standing position, weight bearing and walking. As I have said, from 2010 through 2016, Dr Samaras recommended that he use cushioning runners in conjunction with custom orthotics, so as to maximise the efficacy of the orthotics, to reduce joint strain, to improve his gait and reduce his pain. Dr De Graff emphasised the importance of Mr Dalgleish remaining “as active as possible”, and said “that it is “important for him to continue to exercise regularly”.

118    Mr Dalgleish said that cushioning shoes, to be used in conjunction with orthotics, were the most effective means he had found of managing his difficulties with mobility, pain and swelling. He said that the cushioning shoes aided him because he “can’t wear anything else” and that any other shoe causes his left leg to collapse after a period of time and that the swelling he experiences is worse without the cushioning shoes. That evidence unchallenged.

119    In the circumstances it was plainly reasonable for Mr Dalgleish to obtain the recommended shoes.

CONCLUSION

120    For these reasons Comcare is liable to pay the cost of supply and replacement of the neutral cushioning runners as medical treatment obtained by Mr Dalgleish in relation to his accepted left ankle and foot injury, being treatment that it was reasonable for him to obtain in the circumstances, pursuant to s 16 of the SRC Act. Comcare’s decision dated 29 November 2016 will be set aside, and in substitution Comcare be ordered to pay Mr Dalgleish the cost of supply and replacement of neutral cushioning runners as requested by Dr Samaras by letter dated 13 July 2016.

121    Comcare has previously agreed to pay Mr Dalgleish’s costs of the appeal but it is nevertheless appropriate to order that Comcare pay the costs. Such an order will avoid any procedural difficulty that may arise in relation to any taxation of costs.

Associate:

Dated:    21 December 2018